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Multiple Constitutional Challenges to ICWA

Case Name: Brackeen v. Haaland (5th Cir. 2021) 994 F.3d 249, cert. granted 2/28/2022
Case #: 21-376, 21-377, 21-378, 21-380
Last Updated: February 28, 2022

The U.S. Supreme Court has granted certiorari in four related ICWA cases. They have been consolidated for briefing and oral argument. Future filings and activity in the cases will be reflected on the docket for Haaland v. Brackeen, case number 21-376. All the cases seek review of the Fifth Circuit’s decision in Brackeen v. Haaland (5th Cir. 2021) 994 F.3d 249, cert. granted 2/28/2022 (21-376, 21-377, 21-378, 21-380).)

Question presented in Haaland v. Brackeen, case number 21-376:

Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. 1901 et seq., “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” 25 U.S.C. 1902. The provisions of 25 U.S.C. 1912 establish minimum federal standards for the removal of Indian children from their families, while 25 U.S.C. 1915(a) and (b) establish default preferences for the placement of such children in adoptive or foster homes. The statute also contains several recordkeeping provisions. See 25 U.S.C. 1915(e), 1951(a).

Three States and seven individuals brought suit, asserting that these and other ICWA provisions are facially unconstitutional. The district court agreed and granted declaratory relief. The en banc court of appeals rejected most of the plaintiffs’ challenges, but affirmed, in some respects by an equally divided vote, the judgment declaring the foregoing provisions invalid.

The questions presented are:

1. Whether various provisions of ICWA–namely, the minimum standards of Section 1912(a), (d), (e), and (f); the placement-preference provisions of Section 1915 (a) and (b); and the recordkeeping provisions of Sections 1915(e) and 1951(a)–violate the anticommandeering doctrine of the Tenth Amendment.

2. Whether the individual plaintiffs have Article III standing to challenge ICWA’s placement preferences for “other Indian families,” 25 U.S.C. 1915(a)(3), and for “Indian foster home[s],” 25 U.S.C. 1915(b)(iii).

3. Whether Section 1915(a)(3) and (b)(iii) are rationally related to legitimate governmental interests and therefore consistent with equal protection.

Question presented in Cherokee Nation v. Brackeen, case number 21-377:

In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”) to remedy the “alarmingly high percentage of Indian families [being] broken up by the removal, often unwarranted, of their children by nontribal public and private agencies.” 25 U.S.C. §1901(4). Over the ensuing four decades, state courts have repeatedly sustained ICWA as constitutional, and child-welfare professionals now regard ICWA’s procedural and substantive requirements as the gold standard for child welfare. Below, however, the district court struck down much of ICWA. And while the en banc Fifth Circuit rejected most of the district court’s reasoning, a sharply divided court invalidated several ICWA provisions. The en banc court also affirmed, by an equally divided court, the district court’s judgment invalidating several additional provisions.

The questions presented are:

1. Did the en banc Fifth Circuit err by invalidating six sets of ICWA provisions–25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a)–as impermissibly commandeering States (including via its equally divided affirmance)?

2. Did the en banc Fifth Circuit err by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection?

3. Did the en banc Fifth Circuit err by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. § 1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari, 417 U.S. 535 (1974)?

Question presented in Texas v. Haaland, case number 21-378:

The Indian Child Welfare Act, 25 U.S.C. §§ 1901-63 (ICWA), creates a child custody regime for “Indian children,” a status defined by a child’s genetics and ancestry. This regime is designed to make the adoption of Indian children by non-Indians more difficult. To implement this race-based system, Congress required state agencies to provide services “to prevent the breakup of the Indian family” and imposed a placement hierarchy–which may be changed at a child’s tribe’s direction–favoring Indian-child adoptions by the child’s biological relatives, the child’s tribe, and then any other Indian. Congress then directed state courts to employ a detailed federal set of procedures in state-law Indian-child-custody proceedings.

The questions presented are:

1. Whether Congress has the power under the Indian Commerce Clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian.

2. Whether the Indian classifications used in ICWA and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee.

3. Whether ICWA and its implementing regulations violate the anticommandeering doctrine by requiring States to implement Congress’s child-custody regime.

4. Whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preferences enacted by Congress.

Question presented in Brackeen v. Haaland, case number 21-380:

State child-custody proceedings generally are governed by state law, with placement decisions based on the child’s best interests. The Indian Child Welfare Act of 1978 (“ICWA”), 25 U.S.C. §§ 1901-1963, however, dictates that, in any custody proceeding “under State law” involving an “Indian child,” “preference shall be given” to placing the child with “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families” rather than with non-Indian adoptive parents. Id. § 1915(a); see also id. § 1915(b). The en banc Fifth Circuit fractured over the constitutionality of the placement preferences, affirming in part the lower court’s decision striking them down as unconstitutional.

The questions presented are:

1. Whether ICWA’s placement preferences–which disfavor non-Indian adoptive families in child- placement proceedings involving an “Indian child” and thereby disadvantage those children–discriminate on the basis of race in violation of the U.S. Constitution.

2. Whether ICWA’s placement preferences exceed Congress’s Article I authority by invading the arena of child placement–the “virtually exclusive province of the States,” Sosna v. Iowa, 419 U.S. 393, 404 (1975)–and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.

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